Florida Fuels, Inc. v. Belcher Oil Co.
| Decision Date | 29 June 1989 |
| Docket Number | No. 87-1025-CIV.,87-1025-CIV. |
| Citation | 717 F. Supp. 1528 |
| Parties | FLORIDA FUELS, INC., Plaintiff, v. BELCHER OIL COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
John Mariani, Cadwalader, Wickersham & Taft, Palm Beach, Fla., for plaintiff.
Thomas McDade & William Pakalka, Fulbright & Jaworski, Houston, Tex., Richard Williams, Tew Jorden Schulte & Beasley, Miami, Fla., for defendant.
MEMORANDUM ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE is before the court upon defendant's motion for partial summary judgment filed March 21, 1989. Defendant contends that, as a matter of law, plaintiff cannot prevail on its claim that it was denied access to an essential facility in violation of section 2 of the Sherman Act. 15 U.S.C. § 2.
This suit arises out of Florida Fuels' attempt to compete in the market for providing heavy marine fuel oil to South Florida's cruise ship and cargo fleets. Historically, South Florida was not a major shipping port. But, in the mid-seventies, the cruise ship industry began to expand, as cruise line operators took advantage of South Florida's proximity to Caribbean ports of call. Today, the Port of Miami is the largest cruise ship port in the world and Port Everglades, in Fort Lauderdale, is close behind. These two ports and Port Canaveral, near Cocoa Beach, account for nearly two-thirds of all U.S. cruise ship passenger boardings. The cargo shipping sector has also grown, due to extensive trade with the nations of the Caribbean and South America.
Because of operational constraints and a lack of economical facilities elsewhere in the Caribbean, these ships obtain nearly all of their heavy marine fuel oil (also referred to as "bunkers") at their home ports in South Florida. Bunkers are available in different grades and types, but all consist primarily of a blend of No. 6 oil, or dirty oil, and No. 2 oil, a lighter, better refined and more expensive oil. The quality of the base No. 6 oil, the blending, and the delivery temperature all affect the ultimate quality of the product and the functioning of the ship's engines. Ship owners purchase their bunkers in bulk because of the large quantities of fuel consumed. The cruise ships' schedules require a supplier to fuel many ships within a limited period of time. Late deliveries will delay the ships' departure and ultimately cost the cruise line money.
Defendant Belcher Oil Co. ("Belcher") is based in Miami, marketing a wide range of petroleum products. In Miami, Belcher has a storage tank facility consisting of 15 tanks, located on Fisher Island, near the Port of Miami. Generally, Belcher blends its fuel on the island and then barges the fuel across the channel to service the ships while at berth. Land around the Port is extremely limited and the Port Director has indicated there are no plans for allowing any storage tanks on in the Port property itself. In Fort Lauderdale, Belcher has 30 tanks on 46.5 acres of land in Port Everglades and a system of pipelines servicing all the berths. The fuel is blended and then piped directly to the ships in their berths. Few deliveries are made by barge in Port Everglades. The parties have not presented evidence regarding Belcher's facilities in Port Canaveral, but it appears there are storage tanks there also. The major oil companies have pulled out of the South Florida marine fuel market, leaving Belcher with a monopoly on the supply of bunkers in Port Everglades and the Port of Miami from the mid-seventies until late 1984.
Plaintiff Florida Fuels, Inc. is also headquartered in Miami and provides bunkers to cruise ships in South Florida. Disatisfied by Belcher's high prices and lackluster service, sectors of the cruise ship industry encouraged the principals of Bahamas Fuels to form a new company, Florida Fuels, to provide competition by selling bunkers. The original plan was to purchase heavy oil and No. 2 oil from a Chevron refinery in Freeport, ship it to South Florida, and fuel the cruise liners directly from special barges, blending the fuel in-line as it was pumped into the vessel. Florida Fuels entered into "requirements" contracts with a number of cruise lines to provide bunkers for certain ships for a year at a pricing formula based on market rates. Florida Fuels hoped to finesse the need for landbased storage with its tanker-barges, passing on savings from price changes quicker and providing a better quality product. Florida Fuels made substantial inroads in terms of total bunker sales made in each port, as shown below, but the vast majority of sales have been under contract.
Port of Miami Port Everglades Port Canaveral
Belcher FF Belcher FF Belcher FF
1984 99% 1% 100% 0% 100% 0%
1985 63% 37% 88% 12% 100% 0%
1986 55% 45% 85% 15% 95% 5%
1987 64% 36% 96% 4% 97% 3%
There is limited space available in the Port of Miami area and the port director has indicated there are no plans to allow fuel storage tanks on the Port property, but plaintiff has never formally proposed to lease or purchase land from the port or to lease space from Belcher. Florida Fuels did suggest the possibility of leasing tank space, but Belcher denied the request because of a lack of capacity. No financial terms were proposed or discussed. In Port Everglades, a number of oil companies own fuel storage tanks near the Belcher property and there is land available for constructing additional tanks, but Belcher controls the pipeline leading to the berths. Florida Fuels never formally proposed to lease tank space in Port Everglades from Belcher or any oil company and did not request access to Belcher's pipelines. Most of the tankage in Port Everglades is dedicated to clean oil, unsuitable for the storage of dirty oil. Florida Fuels was offered an opportunity by Port Everglades to participate in an expansion of the pipeline system to newly constructed berths, but declined, claiming it had no access to storage tanks.
During the course of this litigation, Florida Fuels prepared a study which determined it was not economically feasible to construct its own tanks, terminal, and pipelines in Port Everglades. The study estimated that construction of the necessary facilities would require a capital investment of 10-11 million dollars and assumed that Florida Fuels would not invest unless it would receive an internal rate of return of at least 15%. Given recent bunker price levels and current bunker demand in South Florida of 400,000 barrels per month with annual 5% increases, the study determined that to realize its desired return of 15%, Florida Fuels would have to sell its bunkers in South Florida at a price of $2.64/bbl to $3.53/bbl above the Platt's U.S. Gulf low.
Florida Fuels contends that Belcher's storage tanks on Fisher Island and its tanks and pipeline system at Port Everglades are essential to competing in the relevant market. Belcher has conceded, for purposes of this motion, that the relevant market is the South Florida bunker market. Since Florida Fuels is apparently not seeking access to Belcher's Port Canaveral facilities and has presented no evidence regarding these facilities, Belcher's Port Canaveral property will not be considered in this analysis.
Defendant has moved for partial summary judgment on the essential facilities issue, contending there are no undisputed material facts. The court must grant judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Defendant will be entitled to summary judgment unless plaintiff has made a showing sufficient to establish the existence of all the elements necessary to its monopoly claim based on the essential facilities doctrine. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A complete failure of proof concerning a necessary element of the nonmoving party's case renders all other facts immaterial. Id., 477 U.S. at 323, 106 S.Ct. at 2552-53.
Further, the Supreme Court's recent pronouncements make clear that, in an antitrust claim, a plaintiff must present evidence that tends to exclude the possibility that defendant's conduct was as consistent with permissible competition as with illegal conduct. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). Summary judgment will be granted if, considering the factual context, the antitrust claim is implausible or makes no economic sense. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). These standards are not limited to antitrust conspiracy actions. McGahee v. Northern Propane Gas Co., 858 F.2d 1487 (11th Cir. 1988). If necessary, defendant must present a valid business justification for denying access to the facility, as an affirmative defense.* Defendant has directed the court to numerous cases in which various courts have granted summary judgment for failure to show that plaintiff was denied access to an essential facility.
A. The Sherman Act
The Sherman Act prohibits anticompetitive behavior. 15 U.S.C. § 1 et seq. Section 2 makes attempts to monopolize illegal. Although the mere existence of monopoly power does not imply a violation of the Act, the use of monopoly power, no matter how lawfully acquired, to foreclose competition, to generate a competitive advantage, or to destroy a competitor, is unlawful. United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948). There is no general duty to deal, and in the absence of any purpose to...
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